Jennifer has a very good post on judicial empathy, using as her example the case in Oklahoma where a pharmacist is charged with first degree murder for finishing off a kid who tried to rob his store, as he apparently laid bleeding and unconscious on the ground. I am not an advocate of there being no empathy in law. It’s an important component for having a justice system, rather than just having a legal system.
But in our system of law, judges need to stand as impartial arbiters of the law. The empathy should not come from the judge, it should come from the prosecutor, in his decision as to whether or not to bring charges, and it should come from a jury, in their duty to stand in judgment as peers of the defendant.
It was John Jay, the first Cheif Justice of the United States who said, “The jury has the right to judge both the law as well as the fact in controversy.” I would also say not just the law, but also to judge it’s particular application. Jennifer makes a good point about empathy. Put either of us on that jury, and I don’t think we’d convict. By the letter of the law, the man would appear to be guilty of murder, but justice would not be served by him being separated from his family, and sent to prison. He did not ask to have his store robbed, and his life threatened. He was not the person that created the lethal circumstances. I’ll be surprised if there’s a jury in Oklahoma that will convinct him of these charges.
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